Mexico is suing US gunmakers for thousands of guns trafficked across the border each year. Can they win?

By Karol Suarez and Danielle Renwick

When early in his term, Mexican President Andres Manuel Lopez Obrador called on the United States to stem the flow of weapons trafficked across the border, he was only the latest in a succession of Mexican leaders to do so.

According to Mexican officials, some half a million US guns find their way to Mexico each year; the US Department of Justice found that between 2014 and 2018, about 70 percent of firearms recovered in Mexico and submitted for tracing originated north of the border.

Earlier this month, attorneys representing the Mexican government took a new step to confront the country’s epidemic of violence. They filed a lawsuit in a Boston federal court against 7 US gunmakers and one gun wholesaler, arguing that they bear some responsibility for the flow of weapons into criminal hands in Mexico.

The suit accuses the companies of “actively facilitating” the trafficking of those guns to “drug cartels and other criminals in Mexico.” It comes as Mexico’s homicides rates hover around their highest levels since former President Felipe Calderon launched an offensive against the drug cartels in 2006, with more than 36,000 reported killings last year.

‘A river of guns’

The market for legal guns is much smaller and more tightly controlled in Mexico than in the United States. The country has only one gunshop, and it is run by the military. Prospective buyers must pass through stringent background checks, which require proof of employment and a clean criminal record, among other things. And yet over 25,000 Mexicans were killed by firearms last year.

Homicides in Mexico began to increase dramatically in the mid-2000s, when the country intensified its drug war. But the lawsuit points to another event it says contributed to the rise in violence: the 2004 expiration of a ban on assault weapons in the US. The suit alleges homicides went up then, “exactly contemporaneously with Defendants’ increased production, distribution, and marketing of their military-grade weapon.”

“Several academic papers have found a strong statistical correlation between the end of the assault weapons ban and increased availability of weapons and a rise in homicides connected to firearms in Mexico,” Alejandro Hope, a Mexico City-based security expert, told CNN. “Is that the sole reason why violence in Mexico increased? No, certainly not. But it is one of the many drivers.

“The lawsuit makes a very clear case that these defendants are not only entirely aware of the diversion of their products south of the border, and the resulting carnage, but they are [also] aware of steps that could be taken to mitigate those problems,” Adam Skaggs, chief counsel and policy director Giffords Law Center, a gun-control advocacy group that is not involved in the suit, told CNN. “Not only have they not taken any of those steps, but they have profited handsomely from refusing to do anything to address the problem.”

Lawyers representing the gun manufacturers say they are being “scapegoated.”

“It is these cartels that criminally misuse firearms illegally imported into Mexico or stolen from the Mexican military and law enforcement,” Lawrence G. Keane, senior vice president and general counsel of the National Shooting Sports Foundation (NSSF), a trade association whose members are among those being sued, said in a statement. (A spokesperson for NSSF said the organization is not involved in the suit.)

The NSSF in a statement also called the allegations “baseless” and insisted that all retail firearms were “sold in accordance with federal and state laws, with an FBI background check and forms completed.”

The lawsuit

The lawsuit has its origins in a shooting that took place north of the border. On August 3, 2019, a gunman shot and killed 22 people, including at least eight Mexican nationals, in a Walmart parking lot in El Paso, Texas. (A 23rd victim died nine months later).

Mexican officials and families of the victims filed a suit in a state district court against Walmart for not doing enough to protect the victims (Walmart has rejected the allegations; a trial date is expected in 2022). Then the Mexican government set its sight on the gun industry.

“I had the mandate to find legal actions for the government of Mexico to do something,” Alejandro Celorio, the Foreign Ministry’s legal adviser told CNN. “Everything started building from, ‘let’s do something about El Paso’ into this is huge ‘the negligence of the gun industry is immense,’ so let’s do something that tried to solve the bigger picture.”

Steve Shadowen, one of the plaintiff’s lead attorneys, said in addition to seeking damages, his team sought to change the way gun manufacturers do business. “We are particularly interested in getting the manufacturers going forward to change the way they do business, to tighten up their distribution systems so that they don’t continue to supply unlimited amounts of guns to gun dealers who are systematically selling them to straw purchasers and others who are engaged in trafficking into Mexico,” he told CNN.

Shadowen declined to say how much he was seeking in damages, but Mexican Foreign Minister Marcelo Ebrard told journalists that the country would seek at least $10 billion.

The manufacturers named in the litigation are Smith & Wesson, Barrett, Beretta, Century Arms, Colt, Glock, Ruger, and the gun wholesaler Witmer Public Safety group.

A representative from Glock told CNN that it is company policy not to comment on pending litigation but said it would “vigorously” defend itself. Smith & Wesson, Barret, Beretta, Century Arms, Colt, Ruger and Witmer Public Safety group did not respond to CNN’s request for comment.

‘Hugs not bullets’

Since taking office in 2018, Mexico’s President has vowed to fight Mexico’s epidemic of gun-related violence with “hugs, not bullets” — suggesting a break from his predecessors’ hard-line tactics.

But “hugs, not bullets” so far has achieved little. Despite Lopez Obrador’s declarations of “peace and calm” in the country, the homicide rate remains stubbornly high.

“[Lopez Obrador] seems to think about security policy as a byproduct of social policy. You just give people jobs and welfare and somehow crime will decline by some mysterious mechanism,” Hope told CNN. “That hasn’t really panned out.”

Hope said there are some practical considerations for the timing of the suit — a political environment in the US that is increasingly amenable to gun control — as well as political ones. Foreign Minister Marcelo Ebrard is expected to run for the presidency in 2024, and this raises his profile.

“Are there political motivations? Yes. Does that excuse the gun lobby from facing responsibility? No, I don’t think so,” Hope said.

Experts say the plaintiffs are fighting an uphill battle owing to a 2005 US law — the Protection of Lawful Commerce in Arms Act — that shields gunmakers from liability when crimes are committed with their products.

Shadowen said he believed law doesn’t apply to crimes committed outside of the United States. “We’ve consulted with some of the world’s leading experts on this specific issue, and we are convinced that we’re going to win that issue,” he said.

If the case makes it to trial, the gunmakers could be compelled to release years of internal information on marketing practices and what they understood about how their weapons made it into criminal hands, Jake Charles, a second amendment expert at Duke Law School, told CNN.

It could also raise awareness of the impacts of US gun policy beyond its borders.

“Most of the gun debate in America has been over the responsibility of manufacturers, distributors and sellers for harms that occur domestically in the US,” Charles, the legal expert, said. “This will put on the table the question of the extent to which they’re responsible —legally, politically, or morally — for weapons getting into the hands of bad actors in Mexico.”

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Reporting by CNN’s Karol Suarez in Mexico City and journalist Danielle Renwick in New York.